Kendle and Herson (Child support)

[2021] AATA 3673

Kendle and Herson (Child support) [2021] AATA 3673 (29 July 2021)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021141

APPLICANT:  Mr Kendle

OTHER PARTIES:  Ms Herson

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  29 July 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care is not revoked.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to pattern – no basis to revoke existing care percentage determinations - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This application relates to a decision by Services Australia – Child Support (the Agency) relating to the particulars of assessment in the child support case for the child [Child 1].

2. Mr Kendle and Ms Herson are the separated parents of [Child 1]. A child support case has been registered with the Agency since 3 October 2017 and child support has been collectable by the Agency since October 2017.  Mr Kendle is the payer of child support and Ms Herson the payee.

3. Under the administrative assessment of child support, the particulars of care recorded by the Agency included that the parties had 50% care each of [Child 1] from 6 October 2017 onwards.

4. On 16 March 2020, Ms Herson advised the Agency that she had had an additional night of care of [Child 1] from 1 March 2020.

5. On 12 October 2020, an employee of the Agency made a decision to refuse to change the existing determination of care.

6. On 13 October 2020 Ms Herson lodged an objection to this decision.

7. On 18 March 2021 an objections officer of the Agency allowed the objection.  The objections officer made a decision to revoke the existing determination of care and to make a new care determination that, from 10 February 2020, Mr Kendle had 39% care of [Child 1] and Ms Herson had 61% care of [Child 1].

8. On 1 April 2021 Mr Kendle made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision.  The hearing was held on 29 July 2021, on which date both parties spoke to the Tribunal by MS Teams telephone and gave evidence on affirmation. At the hearing the Tribunal had before it documents provided by the Agency (1 to 419) and documents provided by Ms Herson (B1 to B6).  Copies of all documents were provided to the parties prior to the hearing and the parties confirmed receipt of the documents with the Tribunal.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legal issues for the Tribunal in this matter are whether it was correct to revoke the existing determination of care and to make a new care determination, following Ms Herson’s contact with the Agency on 16 March 2020.

2. The provisions relevant to the revocation of an existing determination of care are set out in sections 54F, 54G and 54H of the Assessment Act.

3. For section 54G of the Assessment Act to apply, the Tribunal would need to be satisfied that one of the parents was to have at least regular care of a child under an existing determination of care and had had no care of [Child 1], or had had a pattern of less than regular care of [Child 1]. Subsection 5(2) of the Assessment Act defines ‘regular care’ as at least 14% but less than 35% care of a child. Neither parent has asserted that they have had less than regular care of [Child 1] in the period relevant to this decision. The provisions for revocation of an existing care determination set out in section 54G of the Assessment Act do not apply to the circumstances of this particular case.

4. Both section 54F and section 54H of the Assessment Act require the Tribunal to consider whether ‘the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child’ (see: paragraph 54F(1)(a) of the Assessment Act; paragraph 54H(1)(a) of the Assessment Act). Therefore, for a revocation of the existing determination of care to occur under either provision, the Tribunal would need to be satisfied that the care actually taking place does not correspond with the care reflected in the administrative assessment of child support, which is that each parent has provided 50% care of [Child 1] since October 2017.

5. The parties both gave evidence that historically, while care of [Child 1] had been equally shared, there were numerous ad hoc changes to this care arrangement, necessitated by work commitments, [Child 1] being unwell, travel and other disruptions that commonly occur within a household.  These ad hoc changes were reflected in the documents before the Tribunal, including in the calendars provided by Ms Herson to the Agency, copies of text messages between the parties and written submissions by the parties to the Agency.  The Tribunal is satisfied from the evidence before it that the parties, broadly, had a pattern of care of [Child 1] of 50% care provided by each parent and that the administrative assessments of child support correctly reflected this pattern of care (noting that the administrative assessments reflected Mr Kendle as having 51% care of [Child 1] and Ms Herson as having 49% care of [Child 1] on the basis that assessments issued by the Agency are unable to reflect 50% care provided by each parent).   

6. The potential revocation of care in this case was initiated by a conversation between Ms Herson and a customer service officer of the Agency on 16 March 2020.  Ms Herson’s evidence to the Tribunal was that she did not initiate a change of care on that date, but rather, that this eventuated from her discussion with the Agency.  The Agency’s record of this conversation (folios 50 to 52) reflect that on this date Ms Herson advised that she was expecting care to change as of that week as Mr Kendle had moved in with a new partner; that Ms Herson’s care would increase to 64% because of this; that an additional Monday night was occurring due to [music] classes; and that Mr Kendle would probably disagree as the additional Tuesday nights had not commenced as yet.

7. The legal issue for the Tribunal is whether, at the time of this conversation with the Agency, the pattern of care of [Child 1] had changed such that the existing determination of care no longer reflected the care arrangements going forward.For the following reasons, the Tribunal finds that the overall pattern of care had not changed as at that date.

8. The Tribunal finds that there is inconsistent and irreconcilable evidence as to whether and when care changed such that the existing determination of care should be revoked.  The Tribunal notes that during her contact with the Agency on 16 March 2020, Ms Herson advised the ‘date of event’ of the change in care as having occurred on 1 March 2020; the date of event was linked in this conversation to [Child 1] commencing dance classes and to asking to stay with Ms Herson on an extra Tuesday into the future.  In a subsequent message to the Agency dated 27 April 2020, Ms Herson asserted that care had changed back on 1 August 2019 (well before [Child 1] appears to have been enrolled in dance classes).  By the time Ms Herson had contact with the objections officer during the objections process, she asserted that care had changed on 3 February 2020, when [Child 1]’s dance classes had commenced.

9. Ms Herson provided calendars to the Agency about her care of [Child 1] from March 2020 onwards.  The dates in these documents do not reflect that she had a pattern of care of [Child 1] on each Monday night due to [Child 1]’s dance classes: Ms Herson’s evidence, contained in the calendars, is that [Child 1] stayed with her on Mondays on 2 March, 9 March, 16 March, 30 March, 13 April, 27 April, 11 May, 25 May, 8 June  and 22 June 2020.  The Tribunal accepted that Ms Herson had had an additional night of care on Monday 9 March, but could not discern from the calendars that there had been a change to the pattern of care on a Monday night as of March 2020 due to [Child 1] commencing [music] classes on a Monday night. 

10. Further, a statement Ms Herson provided from her mother dated 27 April 2020, in which her mother asserts that [Child 1] stays with Ms Herson every Monday night, was inconsistent with the dates provided by Ms Herson herself in the calendars.  The Tribunal did not place any weight on the statement prepared by Ms Herson’s mother as the contents were inconsistent with the assertions and evidence of Ms Herson as to the care that had been taking place.

11. Mr Kendle’s evidence to the Tribunal was that there was not an ongoing agreement as of either February 2020 or March 2020 that [Child 1] would stay every Monday night with Ms Herson.  He noted in his evidence to the Tribunal that there was an email from the dance school dated 23 March 2020 noting that the regular timetable was not running until further notice due to the impacts of the COVID-19 pandemic.  His evidence that, once dance classes recommenced in mid-2020, he took [Child 1] to some of the Monday night classes was consistent with his assertion that Ms Herson was to take [Child 1] initially to dance classes because she was taking another child with her, but that there had not been an intention for the pattern of care to change longer term because of [Child 1]’s commencement of dance classes. 

12. The Tribunal noted that, despite the extensive evidence contained on the Agency documents about the numerous and frequent changes to the care of [Child 1], there was no clear and direct evidence that, as of February 2020 or March 2020 when [Child 1] had commenced dance classes, there was a clear intention between the parties that [Child 1] would stay with Ms Herson each Monday night going forward. The Tribunal noted one text message refers to [Child 1] wanting to stay on a Monday night ‘instead of a Tuesday’, but this is undated (folio 269) and, having regard to the Tribunal’s concerns about any clear evidence of a care change, as set out above, the Tribunal is not satisfied that the pattern of care had changed at the time Ms Herson contacted the Agency on 16 March 2020.  Rather, having regard to the ad hoc arrangements for [Child 1] that underlie the broad pattern of care in this case, the Tribunal finds that the one additional Monday night of care provided by Ms Herson did not change the overall pattern of care of [Child 1].

13. As noted above, for the Tribunal to revoke the existing care determination under either section 54F or 54H, the Tribunal would need to be satisfied that the care taking place did not correspond with the existing percentages of care for the child. The Tribunal considers that it is required to take a ‘point in time’ approach and assess this at the date of Ms Herson’s contact with the Agency, on 16 March 2020. The Tribunal is not satisfied that the care taking place at that point in time did not correspond with the existing percentages of care for [Child 1], reflecting equal shared care by each parent. The Tribunal finds that the revocation provisions in sections 54F and 54H do not apply in this case. For this reason, the Tribunal sets aside the decision under review and substitutes its decision that there is no revocation of the existing determination of care. The effect of the Tribunal’s decision is that the care determined under the administrative assessment of child support, reflecting Mr Kendle as having 50% care of [Child 1] and Ms Herson as having 50% care of [Child 1], continued to apply from 10 February 2020, being the date from which the Agency made a new care determination.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that the existing determination of care is not revoked.